Why our proposals won’t create a US-style constitution

Would the Constitution Aotearoa NZ proposals just create a United States-style system, where Supreme Court judges decide everything that is important? The answer is no, according to Geoffrey Palmer and Andrew Butler.

In the United States, the Supreme Court effectively has the last word on many important issues of public policy. It can rule on the compatibility of legislation with the United States Bill of Rights.

Issues like capital punishment, abortion, electoral finance, and healthcare insurance, to name a few recent issues, have all come before the US Supreme Court, which in effect has made the final decision on whether such laws stand or fall.

In theory, the United States Constitution can be amended to override a decision of the US Supreme Court. But the amendment process is so difficult it rarely occurs.

In 225 years, the US Constitution has only been amended on 17 occasions. Many of those amendments have represented seismic shifts in social attitudes – for example the adoption of the Bill of Rights, abolition of slavery, extending suffrage to women, and prohibition.

A Constitution for Aotearoa New Zealand proposes to leave the last word on constitutional issues with Parliament. Under the proposal, Parliament – by a special 75 percent majority – could overrule the courts. There is no such power in the US.

Our proposals, if adopted, would enable the courts to declare Acts of Parliament invalid to the extent that they are inconsistent with the Constitution.

But our proposed constitution also provides that judicial views could be overridden either by a special majority of Parliament (which would itself demonstrate a high level of broad political consensus in opposition to the view of the judges) or by a simple majority at a referendum.

In our view, this approach strikes the right balance. Citizens who are part of a minority group can, appropriately, seek the protection of the courts if they are of the view that their human rights are being unreasonably limited. In general, the view of the courts will prevail.

But where the overwhelming majority of MPs are persuaded that the court judgment is wrong, or where the majority of the people at a referendum can be so persuaded, then popular sovereignty will prevail.

This provides a pressure release valve that avoids the sorts of confrontational issues arising under the Constitution of the US.

We anticipate that the need to use these override mechanisms will be infrequent. Nonetheless, they will act as a reasonable check on an unelected Judiciary to ensure that it does not run rampant and become itself a politicised body. We believe the enhanced judicial role, particularly in the area of human rights, will increase the number of checks and balances within our system for the overall common good.

We are also proposing that the Constitution be regularly reviewed, with extensive public input.